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Government must remember First Amendment protects unpopular views, too


By Douglas Lee
Special to


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Even by politically correct standards, this overreaction to speech is breath-taking.

The startling facts in this case became national news recently, when the 9th U.S. Circuit Court of Appeals held in White v. Lee that employees of the U.S. Department of Housing and Urban Development had unlawfully investigated three California residents. The residents' alleged crime? Speaking out against a proposed housing project for the mentally and physically disabled.

According to the HUD employees, the residents' protests violated the Fair Housing Act, which prohibits discriminatory housing practices. By protesting the conversion of a motel into a housing unit for the homeless, the HUD employees said, these residents were discriminating against the disabled.

The 9th Circuit said otherwise. In affirming a trial court decision, the appellate panel slammed HUD and its employees for using their investigative powers to chill the residents' politically insensitive speech, which included letters to public officials, comments at public meetings and the publication of a newsletter critical of the project. Despite the fact that these activities clearly were protected by the First Amendment, the court said, the HUD employees:

Investigated the residents for eight months, more than twice as long as the 100-day period the Fair Housing Act presumes appropriate for legitimate investigations.

Advised the residents they had violated the act by distributing "discriminatory" fliers.

Offered to drop the investigation if the residents ceased speaking about the project.

Threatened the residents with fines of up to $100,000 if they did not cease their opposition to the project.

Required the residents to produce copies of their publications regarding the project.

Interrogated the residents regarding their views and public statements.

Told the news media that the residents' activities violated the act.

These actions, the court said, "would have chilled or silenced a person of ordinary firmness from engaging in future First Amendment activities." The actions therefore exposed the HUD employees to personal financial liability, although, as the court noted, HUD likely will indemnify the employees for any damages awarded.

As the rest of us should be, the judges were astounded by HUD's blatant disregard of the residents' rights. Even though the residents "engaged in activity paradigmatically protected by the First Amendment," HUD maintained an investigation designed to silence their opposition. HUD claimed that the residents' unpopular views gave it reason to intervene, but the court rejected that notion, holding that advocacy of controversial viewpoints is "the essence of First Amendment expression."

The court then dismissed HUD's argument that its investigation was justified by the residents' purportedly illegal advocacy against the disabled. Since the U.S. Supreme Court decided Brandenburg v. Ohio in 1969, the appeals court said, the law has been clear that "a person's speech or petitioning activity is not removed from the ambit of First Amendment protection simply because it advocates an unlawful act." Under Brandenburg, advocacy can be proscribed only when it is intended and likely to incite "imminent lawless action," a standard the residents' peaceful speech did not meet.

Finally, the HUD employees desperately claimed that their investigation had not been aimed at the residents' speech but rather at a lawsuit the residents had filed to stop the project. In the lawsuit, the residents argued that the project's zoning had been improperly granted because a member of the developer's board of directors also sat on the zoning board. That lawsuit failed when a court held that a "good faith" exception in California law allowed the zoning board to act in spite of the clear conflict of interest.

The 9th Circuit found HUD's claim to be disingenuous. During the investigation, the court said, HUD employees made "little or no effort" to investigate the merits of the residents' suit. HUD did not mention the lawsuit in its threatening letter to the residents or in its questioning of them. Nor did HUD's final investigative report contain any substantial information about the lawsuit. HUD's only focus, the court correctly concluded, was to take a course "certain to chill the exercise of the [residents'] First Amendment rights."

The residents in this case are part of the country's newest minority – those who dare to speak out against politically protected classes. In the government's rush to protect these classes, it unfortunately often tramples the constitutional rights of those who oppose this protection. The 9th Circuit decision hopefully will remind the government that it cannot guarantee some minorities' civil rights by denying those rights to others.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Badger & Lee and a legal correspondent for the First Amendment Center.

Recent Doug Lee columns


Federal appeals panel: Investigation chilled outspoken residents' speech
Judges say federal agency's probe of three Californians opposed to housing project violated their First Amendment rights.  09.28.00

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